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Fox Broadcasting, having lost a key court ruling last month, is more eager than ever to kick Dish Network's new ad-skipping Hopper DVR off the market.

Last month, a federal judge found that Dish's DVRs probably don't break copyright law, ruling that the Hoppers can stay on the market and operate normally while Fox proceeds with its lawsuit. Fox is arguing that it can't wait, and it says that Dish's product has the potential to do serious damage to various aspects of the ad-supported TV business. As promised, it appealed the lower court decision and has now filed its opening brief at the US Court of Appeals for the 9th Circuit (PDF via Deadline.com).

The various affiliates of the Fox media empire originally filed the lawsuit back in May.

"Dish's unauthorized, commercial-free VOD service is anything but fair, and the need to enjoin it could not be greater," Fox lawyers write in their new brief. "PTAT [Prime Time Any Time] and AutoHop cut the legs out from under the ad-supported broadcast television business model, devalue Fox's commercial air time in the eyes of advertisers, [and] block Fox's own advertising efforts."

Under a Fox contract, Dish can only provide video-on-demand (VOD) services if it disables any kind of fast-forwarding features. Dish's PTAT service is being "openly market[ed] as commercial-free VOD," in violation of that agreement, write Fox lawyers.

Fox argues the judge's decision fails to seriously analyze the four "fair use" factors, and relies on a "strained" reading of the key Cablevision ruling, which allowed for remote DVR services. The idea that its users, not Dish, are in control of what data gets copied is much too lax, says Fox: "Under this standard, any infringing service can now escape direct liability as long as its customers 'press a button' to sign up."

Changes made by Dish since launching the product "provide the illusion of user 'control' when in fact Dish still runs the show." The DVR's default settings still record all four networks every night of the week and save that programming for eight days, Fox notes.

However much Fox might be in a hurry, its failure to win an injunction in the lower court means it will have to wait at least a little while longer with Dish's product on the market. The appeals case won't be fully briefed by the end of next month; Dish's brief is due January 17, and Fox can then file a reply to that brief before January 31.

85 Reader Comments

That depends on how they win and what DISH can feasibly do. Assuming a complete ban on the commercial skipping service is ordered two options come to mind:

1. DISH has to replace every Hopper box with a compliant unit.2. More likely and cost effective, DISH issues a firmware update to remove the offending technology from their boxes.

It's a huge longshot for Fox to win, since these issues independently have all appeard in federal court before, or the FCC has already ruled on it in law. However, lets assume the worst. Fox is awarded victory that includes disablement of the PTAT and AutoHop services both!

1) to fix PTAP, you have to understand how hopper works. It has only 3 tuners, not 6. 2 are traditional tuners, the third is a high bandwidth hybrid tuner that tunes into a "special" PTAT channel in prime time. Over that one channel, all 4 programs are concurrently downloaded as a data atream (think simulcast IPTV) and are saved out to files using a custom protocol, live as they air. If Dish is ordered to replace this, they're hobbling hopper to a 3-tuner system, and that will cause mass panic and returns with customers, likely giving dish customers an instant option out of their contract if Dish does not give them a second hopper and bind the two in software to add the addityional tuners to a single recording poo, or replace the joweys with boxes that actually have their own individual tuners, and anything the do there will also require a site visit to change out the receive heads on the sattelite itself to supprot more than 3 streams, and home rewiring efforts. This is extremely unlikely to happen though, as it is, for all intents and purposes, IPTV, and I do not think even if Fox wins against auto-hop it could win againts this simple method of recording via virtual tuners since it is still limited to recording live, and the VOD argument is pure bullshit.

2) Auto-Hop. When you got hopper you were read the riot act, that Auto_hop is a beta service, and can be removed at any time for some or all channels. It is not an advertized or promised feature of your contract, and if a court so orders them to they can take it away, and they do not have to give you an out excuse for your contract. Yes, this will cause consumer unrest, but since no other competitor has this, hopper is still currently the best hardware on the market, and Dish still has the lowest price, don;t expect and concessions to be offered, maybe just a few free VOD movie coupons if you really put up a fuss. Customers are not going to leave over this unless they could get it somewhere else, and they can't, because even if it was available, that company would be pulling the plug too.

3) increased fees: Fox may be given the right to refuse auto-hop as a contractual term, without it being ruled ilelgal. Fox may in turn offer to let them keep it for a large fee increase. Dish will have to east this fee for at LEAST the first year for all dish subscrivbers to to contractual terms forbidding fee increases the first year, and either forbidding them or limiting them the second year. Dish would have to for at least some time eat those fees. It's also possible Fox could continue to deny PTAT use without rediculous fees (which might make them turn it off for FOX and only FOX instead of paying those fees, of offer it through as an add-on service formally and charge for it as a premium, as TWC still does for VOD). Maybe ABC and NBC and CBS let them keep doing it and Fox becomes the one and only without it, meaning new programs might considder Fox of lesser value, as producers care abiout viewership, not ad revenue, and being included in PTAT vs not radically changes the model. Maybe Dish simply drops Fox from PTAT and adds WB, or Spike, or some other major cable network snubbing Fox?

What if Dish Wins, what if the consumer is ruled legally able to modify a recording to wkip commercials regardless of where it;s braodcast from and by who, so long as they have legal rights to record it? Fox immediately can;t leverage the existince of such a feature as a justification to increase contract fees, and Dish could turn it on for ALL channels immediately. They may also be able to change what 4 channels are included in PTAT (within limits, each PTAT 4 pack would require an actual dedicated channel to broadcast the feed on due to the nature of the service) but that could radically shift the balance of what channels get the most business. Legitimizing auto-hop is the worst possible outcome for the networks. I seriously suspect that if this trial starts to go bad for Fox (highly likely), that they will offer a massive settlement to avoid their being an actual ruling on the matter outright to protect the operating income of their other cable networks and the status quo. Dish may well refuse that settlement on pricipal (I hope they would and ensure a trial resolution), but the money might be sweet enough to go that route while still ensuring PTAT and Auto-Hop continue, which further leaving it in Fox's court to choose whether or not to allow Dish's competition to do it at all, still arguing it's illegal. This would require the judge allowing the case to be dropped without prejudice (if settled out, it likely would be WITH prejudice, meaning Fox could not sue the competition either, in that case, it might as well be a loss for Fox anyway), but that's a possibility.

I like fox sports, and sadly, using this ad-skipping requires you to watch your content after it originally aired. For sports, this is problematic as the end result is a clear spoiler and hard to avoid. So I always watch live when possible and, like most people, get up and walk around while the commercials play. For other programming though, I can see how this is an issue, as i record shows and watch them when it's convenient for mw, skipping ads as I go.

I'm not a Dish customer, but I like to give sporting events a few minutes head start on my DVR. Ideally, I start a bit late but catch up as I go by skipping the commercials, finishing close to real time and avoiding spoilers.

I too have used this approach, but I find that for sport I end up catching up quickly, while you could start recording and wait for a long period, that starts getting into inconvenient and more trouble than its worth territory. That said, for standard content (drama, comedy, etc) where there is a set ratio of 1/3 ads and 2/3 content (for an hour show) you can get away with this method.

You know that Fox is not going to win this one and if they did the outcome would be bad for Fox, not for Dish as somebody stated before. By the way, I wonder who voted down on about all the comments supporting Fox? There are about 3 down votes on each comment. Must be people who work for Fox.

In other news, buggy whip manufacturers continued their appeal of their loss to Ford Motor Company for "Gasoline-powered Automobiles cut the legs out from under the horse-drive buggy business model, devalue Buggy Whip Production system in the eyes of purchasers, [and] block our own own advertising efforts. We ask that all gasoline-powered cars be enjoined from production and require that all car owners immediately purchase a horse and associated buggy-whips.

I think this is a different situation. In this case, the correct action is not the courts, but for Fox to pull their content from Dish until Dish caves because their customers start to defect.

FOX cannot legally pull their content. By order opf the FCC, all broadcast lcoal stations of certain size/market minimums must offer their content to cable/sattelite networks at "fair rates" (which used to actually be Fox paying Dish, not the other way around), or risk their airspace being revolked under breach of public service requirements. As it stands, their "fair rates" having 300+% contract increases while Fox is actually itself increasing both its viewerbase and profits is already under scrutiny and has drawn the eye of the FTC and FCC several times, recently resulting in the government itself sending stern letters. Obama himself ordered a network to ensure their service was not cut off during a recent superbowl for one carrier, threatening without explicitly stating it in so many words the revocation of their broadcast license should they not carry the game over a nearly identical contract dispute (fee increases, not autohop).

The basic cable networks, and explicitly the broadcast tier, cannot be pulled. Congress decides what is on that list, and further, also has the power to decide the max monthly fee for basic cable plus the broadcast channels. Fox and friends can only ask so much of a fee increase without asking congress itself to change that limit for all consumers, essentialyl asking congress for a tax on subscribers to pay directly to Fox, and I think that might not fly well with voters... OTA is free OTA, why does it cost over sattelite, when the same commercials are included, and the same ability to record is leggaly in consumers hands? If the price goes up enough, Dish will just include an anteanna and tuners and stop paying Fox. $100 per house over 2 years, that would be enough to cover it for new installations.

Given that TV stations have gotten to where you have to pay for cable to receive even local stations, I have no sympathy for networks crying about advertising revenue being devalued.

The cable networks pay them to carry their content and give them a wider audience. I pay for cable already and pay for the DVR or other recorder. And the TV companies have been complaining technology would put them out of business since the VCR but they're still here. Shut up and stop being so greedy.

A written contract or agreement has been made pretty much worthless in this country. That's what people ought to really be concerned about. Two parties agree to a written contract, one party then later wants out, and the judges are letting them get out.

Who among us that has a DVR of any kind (or even a VCR in days gone by) watches commercials? They get skipped or fast-forwarded through without a seconds thought or hesitation. Fox is arguing for us to see a series of near-subliminal images whizzing across the screen as opposed to letting this device cut them.

Could the public just enjoin them against using that horrible spokesperson with that horrid accent for their radio commercials? That would be nice.

It might be the same person as their TV adverts, I don't know - I don't watch broadcast TV.

I get a little extra annoyed at the fact that he pretends to play more than one part - and you can tell easily. And that every time he has "forgotten" whatever the message was from the previous advertisements.

When you have that distinctive of an accent and a voice, you can't do stuff like that. Just give the facts - don't roleplay "dumb".

The worst thing (that Big Content refuses to recognize) is that people get very tired, very quickly with HAVING TO SUFFER THROUGH THE SAME FIVE FRIGGIN' COMMERCIALS SPACED OVER AN HOUR LONG PROGRAM!! ...well pardon my French but; 'screw that.'

I would love to be a bug (with a camera) on the living room wall of some of these bleating execs. If they are caught fast forwarding, we should take a chapter out of the Taliban's playbook and remove the offending finger on the remote.

So how are they going to stop those of us that record EVERYTHING we watch and just FFWD through comercials. If the GREEDY BASTARDS wern't so busy DOUBLE DIPPING from advertisers and from us paying for our tv then they wouldn't be mad about ad skipping.

So how are they going to stop those of us that record EVERYTHING we watch and just FFWD through comercials. If the GREEDY BASTARDS wern't so busy DOUBLE DIPPING from advertisers and from us paying for our tv then they wouldn't be mad about ad skipping.

I think the issue is that if advertisers know nobody is watching the commercials anymore, then the advertisers won't be willing to pay as much for that ad time. To which I say boo frickin' hoo

The DVR's default settings still record all four networks every night of the week and save that programming for eight days, Fox notes.

Wow, what a horrible waste of disk space.

And no, that's not a nose-in-the-air comment. I watch a handful of major network shows. But I can't imagine even a household of people wanting to watch enough different stuff to make it worth devoting 128 hours worth of their DVR's storage capacity before even programming it to record a single show.

In other news, buggy whip manufacturers continued their appeal of their loss to Ford Motor Company for "Gasoline-powered Automobiles cut the legs out from under the horse-drive buggy business model, devalue Buggy Whip Production system in the eyes of purchasers, [and] block our own own advertising efforts. We ask that all gasoline-powered cars be enjoined from production and require that all car owners immediately purchase a horse and associated buggy-whips.

Why does this stupid analogy always get made? Lets see buggy whip production produced a product that was sold. It was replaced by the automobile that was also sold. 2 products used in personal transportation that were monetized.

While in this example Fox wants to sell TV shows well advertising attached to TV shows. And its getting replaced by oh the same TV shows just without the ads. So here you have 1 product for personal entertainment and you want them to stop monetizing it.

Yeah great idea sure there will be a line outside to produce <insert show you like here> for the millions of dollars it cost to produce while making nothing in return.

I still have to manually skip, but pressing the skip button simply automatically fast-forwards by 30 seconds. I can also instantly rewind by a few seconds, so skipping commercials is much simpler than on my old cable-company DVR.

And let me tell you... the box and software from DirecTV is SO much better than my cable company's box. The difference is like night and day. After using satellite, I never want to go back to cable.

Why does this stupid analogy always get made? Lets see buggy whip production produced a product that was sold. It was replaced by the automobile that was also sold. 2 products used in personal transportation that were monetized.

While in this example Fox wants to sell TV shows well advertising attached to TV shows. And its getting replaced by oh the same TV shows just without the ads. So here you have 1 product for personal entertainment and you want them to stop monetizing it.

Yeah great idea sure there will be a line outside to produce <insert show you like here> for the millions of dollars it cost to produce while making nothing in return.

The reason for the analogy is because the company in question is trying to fight the tide. Fox's argument is so stupid that their lawyers should be tarred, feathered, punched in the throat, then disbarred.

In other news, buggy whip manufacturers continued their appeal of their loss to Ford Motor Company for "Gasoline-powered Automobiles cut the legs out from under the horse-drive buggy business model, devalue Buggy Whip Production system in the eyes of purchasers, [and] block our own own advertising efforts. We ask that all gasoline-powered cars be enjoined from production and require that all car owners immediately purchase a horse and associated buggy-whips.

Why does this stupid analogy always get made? Lets see buggy whip production produced a product that was sold. It was replaced by the automobile that was also sold. 2 products used in personal transportation that were monetized.

While in this example Fox wants to sell TV shows well advertising attached to TV shows. And its getting replaced by oh the same TV shows just without the ads. So here you have 1 product for personal entertainment and you want them to stop monetizing it.

Yeah great idea sure there will be a line outside to produce <insert show you like here> for the millions of dollars it cost to produce while making nothing in return.

Seems like it's appropriate to me. My guess would be that you don't get the analogy. It's about products that NO ONE wants to continue which are being forced upon us by something other than the "free market" we supposedly have in this country.

In other news, buggy whip manufacturers continued their appeal of their loss to Ford Motor Company for "Gasoline-powered Automobiles cut the legs out from under the horse-drive buggy business model, devalue Buggy Whip Production system in the eyes of purchasers, [and] block our own own advertising efforts. We ask that all gasoline-powered cars be enjoined from production and require that all car owners immediately purchase a horse and associated buggy-whips.

Why does this stupid analogy always get made? Lets see buggy whip production produced a product that was sold. It was replaced by the automobile that was also sold. 2 products used in personal transportation that were monetized.

While in this example Fox wants to sell TV shows well advertising attached to TV shows. And its getting replaced by oh the same TV shows just without the ads. So here you have 1 product for personal entertainment and you want them to stop monetizing it.

Yeah great idea sure there will be a line outside to produce <insert show you like here> for the millions of dollars it cost to produce while making nothing in return.

Seems like it's appropriate to me. My guess would be that you don't get the analogy. It's about products that NO ONE wants to continue which are being forced upon us by something other than the "free market" we supposedly have in this country.

Huh? Lets see before the hopper they wanted to watch American Idol not they want to watch American Idol but with out the commercials? Still not seeing it.

Dish removes AutoHop in a software push to the existing machines and it quietly disappears the next time the receiver checks for updates. Simultaneously, Dish installs a new screensaver, featuring an option between pigs flying and hell freezing over.

TomXP411 wrote:

I really like they way my DirecTV box handles commercials.

I still have to manually skip, but pressing the skip button simply automatically fast-forwards by 30 seconds. I can also instantly rewind by a few seconds, so skipping commercials is much simpler than on my old cable-company DVR.

And let me tell you... the box and software from DirecTV is SO much better than my cable company's box. The difference is like night and day. After using satellite, I never want to go back to cable.

That feature is one DTV receivers inherited from TiVo. It's also present on Dish.

I know it's ubertrendy on these comments boards to have a go at people who own the content and lambast them with your facile hipster comments about broken business models, but what are you going to do when the business model collapses and there is no free-to-air television worth watching?

All of the quality content will be on pay-TV which is an inequal model in terms of fairness and society's access to media and news. The only thing that will be on FTA TV is the stuff that is the cheapest to make, which it seems also happens to be the lowest quality such as the "reality" genre.

FTA is funded by the combination of your eyeballs and advertisers' dollars, if you take away the advertisers' dollars your eyeballs will have nothing to watch. There seems to be an alarming rise in the number of people who demand quality content, but refuse to pay for it, blaming their selfishness and quasi-anarchy on the content providers and their refusal to change their business model, rather than the end clients just wanting more and more free shit, making other people pay for it.

I know it's ubertrendy on these comments boards to have a go at people who own the content and lambast them with your facile hipster comments about broken business models, but what are you going to do when the business model collapses and there is no free-to-air television worth watching?

Go outside. Read a book. Argue on the internet. The theoretical death of free to air television wouldn't be a tragic loss, and this isn't going to cause the death of free to air television. At most, it will result in changes in how advertising is done, changes that have already taken place to a great extent.

I know it's ubertrendy on these comments boards to have a go at people who own the content and lambast them with your facile hipster comments about broken business models, but what are you going to do when the business model collapses and there is no free-to-air television worth watching?

It's exactly what it says; how-to-program-a-30-second-skip-button-for-comcast-dvrs. I chose to override the "help" button and never missed it. I have a friend, not too far away, who's on Cox cable with a very similar looking remote, but couldn't ever find a similar process that worked.

For the record, I find myself watching a decent number of commercials. skipping 30 seconds at a time, I generally see a logo flash on the screen and know what's being advertised; I back up for movie teasers, and anything that looks sufficiently weird. It's actually not that unpleasant, when you don't have to. Also when a show has a mini-cliffhanger before commercial break, I find myself wanting a few seconds to process what just happened, before the show resumes.

Sorry to not jump on the bandwagon but it's not as simple as Ads=Bad, No Ads = Good.

The thing about TV is that it's always been distributed electronically - the internet, aside from DVD's doesn't make content delivery cheaper here because TV content has always been electronic. So aside from increased competition which is a great thing, there isn't much opportunity to increase efficiency. This contrasts with other industries which have been disrupted such as music which was largely build on CD distribution.

If you like content you have to at least acknowledge the need to pay for that content. Increased competition helps prices a bit but it's not going to be drastic in this case. The alternative to ads is, realistically, less content or other sources of revenue. Netflix, at $8 a month can't ever support the extent or quality of content we're used to. It just can't happen.

Well I pay significantly more than that each month for my cable. If the $60 dollars I pay each month went direct to content producers I think we could still support great content.

The part of the industry that can't be supported and is no longer required is the cable companies. If for example I could pay a monthly fee for just hbo online I would.

In other news, buggy whip manufacturers continued their appeal of their loss to Ford Motor Company for "Gasoline-powered Automobiles cut the legs out from under the horse-drive buggy business model, devalue Buggy Whip Production system in the eyes of purchasers, [and] block our own own advertising efforts. We ask that all gasoline-powered cars be enjoined from production and require that all car owners immediately purchase a horse and associated buggy-whips.

I think this is a different situation. In this case, the correct action is not the courts, but for Fox to pull their content from Dish until Dish caves because their customers start to defect.

Fox would be hard pressed to do that since they too are losing ad revenue because of less viewers thru Dish. Plus, Dish could throw in a breach of contract suit to boot. Fox already tried to seriously pressure Dish a few years ago. Fox tried to pressure Dish into paying more for Fox programming. Dish had to dump Fox channels and the battle began. Dish did lose some customers, but Fox realized that this strong arm tactic didnt work as absolutely as they thought.Fox should get the hint from Disney. By Disney working out an agreement with Netflix to authorize their movies to be streamed... the writing is on the wall for our current advertising model. Good riddance! I am tired of paying a mark up for products to go to advertising on sports and tv.

I enjoy a few shows on Fox, but that doesn't stop me from removing all the commercials using some software **before** the first watch session. Sorry. Commercials that are not part of the main content are predictable and easy to remove.

I want ad-supported broadcast TV to remain free. The solution is slightly disruptive, but not completely so. All those smart ad-execs and TV execs already know the answer - put the ads directly inside the TV shows.

For example, Nikita is a guilty pleasure of mine. That show certainly uses enough gadgets that WANT to be advertised - cars, SUVs, guns, dresses, watches, smartphones, headsets ... computers, laptops, gaming systems .... come on people. Put 20 lines of commercial dialog into the show and have 15 seconds of action shots using each product. It isn't that hard.

For shows that don't have much to sell, well that just sucks. Guess your people need to get real jobs at real companies, so when they talk about work and brilliant management, it can be come an ad. Nobody will believe it when any worker-bee-type calls their management brilliant - my bad.

Or Fox could move to a pay model to see how that works out. Netflix-only distribution. However, it should be noted that not many people are happy with Netflix. There are many complaints against almost all streaming services, including Netflix. People like to complain I guess.

Sorry to not jump on the bandwagon but it's not as simple as Ads=Bad, No Ads = Good.

The thing about TV is that it's always been distributed electronically - the internet, aside from DVD's doesn't make content delivery cheaper here because TV content has always been electronic. So aside from increased competition which is a great thing, there isn't much opportunity to increase efficiency. This contrasts with other industries which have been disrupted such as music which was largely build on CD distribution.

If you like content you have to at least acknowledge the need to pay for that content. Increased competition helps prices a bit but it's not going to be drastic in this case. The alternative to ads is, realistically, less content or other sources of revenue. Netflix, at $8 a month can't ever support the extent or quality of content we're used to. It just can't happen.

Well I pay significantly more than that each month for my cable. If the $60 dollars I pay each month went direct to content producers I think we could still support great content.

The part of the industry that can't be supported and is no longer required is the cable companies. If for example I could pay a monthly fee for just hbo online I would.

The bulk of your 60 dollars a month does go to the content producer. Cable companies make little to nothing on the broadcast portion of your bill they make their money on Phone and Internet. What little money they do make comes from the local ads they show.

And before you say A la carte or HBO to Go. If you like Mad Men that show is a loss leader for AMC. It would not exist in a pay as you go format. Or if you like the Wire or Luck on HBO. Even Boardwalk Empire would not be produced if not for the current model.

I'm confused here. Since when is double-dipping required to sustain a business for a company such as Fox, which gets a certain amount from every cable/dish service provider per customer? Sure, advertising is huge business, but these guys are already huge and have a rather large following. Sounds to me like a bunch of bullshit.